More Reactions to the State of the Judiciary

Paul Burka of Texas Monthly

Burka wrote a post Thursday morning suggesting that bare-knuckle Texas politics either would corrupt any merit selection system — or would prevent it from ever being enacted.

The comments have some back-and-forth about what sort of criteria would be appropriate for a true merit-based system.

The Austin American-Statesman

The newspaper’s editorial board generally praised the speech, concluding “The chief justice is right, and the Legislature should act.”

I do think, however, that the editorial board placed a little too much hope in the pending U.S. Supreme Court case Caperton v. A.T. Massey Coal, which I’ve mentioned before. The editorial board said:

Change may be coming, Jefferson said, because the U.S. Supreme Court has before it a case, Caperton v. Massey, in which it “will decide whether due process requires the recusal of an elected judge who has benefited from a litigant’s campaign expenditures.” The court is scheduled to hear oral arguments in this case from West Virginia on March 3.

If the court rules for recusal, the Texas Supreme Court could be put out of business, as could the state’s appeals courts and many district judges.

However distasteful the U.S. Supreme Court finds the facts in Massey, I very much doubt it will strike down all judicial elections. Just last year, that court implicitly upheld the validity of judicial elections while upholding New York’s system of picking judges.

I see two real possibilities for Massey. The first is what happened with the political gerrymandering cases — Vieth v. Jubelirer and LULAC v. Perry. The Court’s eyes for an interesting question may prove to be bigger than its stomach for actually choosing where to draw a tough political (and perhaps rightly nonjusticiable) line. The second possibility is that the Court could rule for the petitioners in Massey while leaving its announced rule of law fuzzy and indeterminate enough that it becomes a sort of “judicial fundraising obscenity test,” in which the Court knows it when it sees it.

Neither of those outcomes would save the Texas Legislature from making the hard choices that would be involved in fixing the Texas system. (( And, in any event, I’d be surprised if the Massey decision is handed down before the Texas Legislature adjourns for the session. If the legislators are told they need to wait for the U.S. Supreme Court on this one, they’ll be waiting until 2011. ))